Plaintiff Gary Naham brought this action against seven individual Chicago Police Department officers and the City of Chicago, alleging civil rights violations under 42 U.S.C. § 1983 and malicious prosecution under Illinois law based on events relating to the execution of a search warrant. The defendant has moved for partial summary judgment on four of the seven counts of the complaint, alleging Due Process violations (Count II), conspiracy (Count III), false arrest (Count IV), and unlawful search (Count V). For reasons that follow, the motion is granted.

On January 24, 2006, Defendant Chicago Police Officer Richard Haljean submitted an application for a search warrant to search the home of Gary Naham. The affidavit alleged facts suggesting there was probable cause to search Naham's home for evidence of methamphetamine distribution. After a judge issued the search warrant, a search team led by Robert Stasch and consisting of Adnardo Gutierrez, Thomas Walsh, James Vasavid, John Meindl, James Cwick, Donald Szczesny, Richard Haljean, and Nick Spencer executed the search on Naham's home. After claiming to recover marijuana, methamphetamine, a cannabis grinder, and some cash in the search, the officers arrested Naham, who was then charged with possession of a controlled substance and possession of marijuana. The State eventually dismissed the charges against Naham nolle prosequi, and Naham filed this lawsuit.[2]

Naham alleges that he was targeted by the police officers in a broad conspiracy to retaliate for another incident nine days earlier, on January 15, 2006. Naham alleges that Szczesny had entered Naham's home without a warrant, and that Naham responded by locking Szczesny on the balcony and calling 911. Naham alleges that after that incident, the officers obtained the search warrant at issue in this case using knowingly false information in the affidavit. Naham also alleges that the officers used excessive force in executing the warrant in a no-knock raid, sexually assaulted him, unreasonably and unnecessarily destroyed his property, and planted false incriminating evidence. Further, Naham alleges that during the pendency of the criminal proceedings, the officers continued to withhold exculpatory evidence. Finally, Naham alleges that the City of Chicago maintained a widespread custom and practice, as described in Monell v. Department of Social Services, 436 U.S. 658, 691 (1978), of covering up police officer misconduct.

In December 2008, Judge Andersen granted the defendants' motion to bifurcate the case, and stayed litigation of the Monell claim (Count VI) until after the other claims are resolved. See Minute Order, Dkt. 48. After discovery closed, the defendants moved for summary judgment on Naham's claims alleging due process violations (Count II), conspiracy to deprive due process rights (Count III), false arrest (Count IV), and unlawful search (Count V). The defendants' motion does not seek summary judgment on Naham's excessive force and failure to protect claim (Count I) or malicious prosecution claim (Count VII).

DISCUSSION

The Court will address the arguments for partial summary judgment based on the chronology of the applicable facts rather than their numerical sequence in the complaint.

I. Fourth Amendment Search (Count V)

Naham alleges that defendant Richard Haljean knowingly used false statements to obtain a search warrant for Naham's home. Specifically, Naham alleges that Haljean misused an existing template Complaint for Search Warrant and filled in false statements about a confidential informant's description of drug sales out of Naham's home and false statements about Haljean's personal observations of suspicious activity. Naham disputes that a confidential informant exists at all, and alleges that Haljean simply fabricated the entire story.

Naham offers no direct evidence that the informant does not exist. In support of his allegations, Naham highlights the near-identical "template" language used by Haljean in over a dozen other search warrant affidavits. See Pl.'s Resp., Dkt. 203, at 45-101.[3] Naham also points to perceived inconsistencies between Haljean's original affidavit used to secure the search warrant and his affidavit prepared for his defense in this case. Further, Naham notes that Haljean's original affidavit alleges suspicious foot traffic to and from Naham's home, which Naham contends is impossible to observe from the street, because an observer would be unable to tell which of the 30 apartment units any given person is going to or coming from. Naham argues that he was targeted with a search warrant and raid because of an altercation that had occurred with defendant Donald Szczesny a week earlier, and that access records show that Haljean's supervisor Robert Stasch had viewed Naham's criminal history file on January 15, 2006, over a week before Haljean claims he became aware of Naham's file.

When an affiant seeking a search warrant knowingly and intentionally (or with reckless disregard for the truth) makes a false statement that is necessary to the finding of probable cause, the warrant must be voided, and the resulting search must be treated as if no warrant had issued at all. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). "There is... a presumption of validity with respect to the affidavit supporting the search warrant." Id. at 171. To overcome this presumption and avoid summary judgment in a § 1983 case, a plaintiff first "must provide evidence that the officers knowingly or intentionally or with a reckless disregard for the truth, made false statements to the judicial officer." Molina ex rel. Molina v. Cooper, 325 F.3d 963, 968, 971 (7th Cir. 2003) (internal quotation marks omitted); see also Parkey v. Sample, 623 F.3d 1163, 1165 (7th Cir. 2010) (holding that when a plaintiff alleges police deception in a warrant application, the defendant officers "need only show an absence of evidence to support [the plaintiff's] claims" to succeed in a motion for summary judgment). Second, the plaintiff must show that "the false statements were necessary to the judicial officers' determinations that probable cause existed." Molina, 325 F.3d at 968.

Naham has failed both prongs of this test, and the minor deficiencies that Naham perceives in Haljean's 2006 affidavit are not sufficient to overcome its "presumption of validity." Franks, 438 U.S. at 171. Haljean's 2006 affidavit is not actually inconsistent with his later 2013 affidavit. See Pl.'s Resp., Dkt. 203, at 46-47; Haljean Aff., Dkt. 195-B, at 1-4. In the 2006 affidavit, Haljean reported that he had a conversation with the confidential informant on January 24, but did not mention any earlier contact with the informant. In the later 2013 affidavit, Haljean reported that he had conversations with the informant on both January 23 and January 24. Because the earlier affidavit did not represent that the January 24 conversation was the only conversation between Haljean and the informant, the later affidavit provides additional context and not a contradiction. Similarly, Naham insists that the 2006 affidavit falsely represents that Haljean retrieved Naham's criminal history file on January 24. According to Naham, the affidavit is a chronological narrative that Haljean's criminal history check-which is mentioned last in the affidavit-occurred last in time, after other events that occurred on January 24. Because Haljean's 2013 affidavit and the database access records show that Haljean had actually retrieved Naham's record on January 23, Naham argues that the earlier affidavit must be false. However, the 2006 affidavit does not state the time or date when Haljean checked for Naham's criminal history record, and Naham provides no reason to assume, by implication, that the affidavit makes any assertion at all about the date of the criminal history check, much less an implied assertion that is contradicted by other evidence.

At most, Naham has identified a few minor omissions from the 2006 affidavit, but immaterial omissions are not enough to invalidate a warrant. See Molina, 325 F.3d at 968 (requiring affidavit omissions to be material to invalidate an otherwise legitimate warrant). Adding that Haljean had conversations with the confidential informant both before and after the alleged drug buy would actually bolster-not weaken-the finding of probable cause in some ways, such as by establishing rapport between Haljean and the informant. And even if Naham had identified a contradiction between the 2006 affidavit and database records of the background check, the timing of the background check would not have materially changed the probable cause analysis anyway. See, e.g., Forman v. Richmond Police Dept., 104 F.3d 950, 964 (7th Cir. 1997) (holding that an officer's inconsistency as to whether a document was an original or a photocopy ...

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